Contentious Confirmations

As the nation settles in for hearings on the nomination to the Supreme Court of Amy Coney Barrett, it is worth looking back at previous confirmation hearings from the 20th century. Today’s televised and heavily reported confirmation hearings bear little resemblance to those from a century ago – Prior to 1929 debate on Supreme Court nominations typically happened in closed Senate sessions[1].

The newspapers we have digitized here at the Alaska Digital Newspaper Program are primarily from 1900-1963, and during that time 41 different people were nominated to be justices of the United States Supreme Court. Of those 41 nominees from 1900 to 1963 all but one was confirmed by the Senate. However, it would be a mistake to think that the 40 confirmations were all without controversy. There were several Supreme Court nominations in the early to mid-nineteenth century that provoked considerable opposition and controversy. Among the most contentious nominations were those of Hugo Black and Louis Brandeis, each for vastly different reasons, which this blog will examine in more depth.

In 1916, when presented with the second opening on the Supreme Court during his term of office, Woodrow Wilson opted to nominate a progressive lawyer from Boston, Louis D. Brandeis, known as the “People’s Attorney.”[2] Brandeis had a reputation for championing the rights of working class Americans; as one senator put it: “Brandeis, when you come down to the truth of it all, has performed a great service for what we call the ‘under dog’ in the fight.”[3]

Evening Star, 1916-01-28

Over the course of his career as an attorney, Brandeis had fought against a merger of the New York, New Haven, and Hartford railroad with the Boston and Maine railroad to prevent a monopoly. He successfully fought to limit the working hours of women, in an Oregon case that established a ten-hour workday. It was this case that established the phrase “Brandeis Brief” for his use of data and statistics that went outside of legal arguments and instead addressed sociological, economic, and even medical issues[4].  

For all of the popularity that Brandeis’ cases had won him, they also gained him a share of infamy, and the confirmation hearings for Louis Brandeis would be among the wildest and most contentious in the nation’s history up to 1916. It was also the first confirmation hearing to happen in open sessions of the Senate, something that did not become regular until the 1920s[5]. Opposition to Brandeis came from several groups, including business interests, former President William Howard Taft[6], and even the American Bar Association[7].

Cordova Daily Times, 1916-02-10

Over a hundred witnesses would be called to the stand to testify to Brandeis integrity, ethics, and judicial temperament. One witness testified that it was only “big business interests”[8] that were fighting Brandeis’ confirmation, and some newspapers supported this argument, alleging:

“[h]e is opposed for the reason that he has stood for the masses in the encroachment of privilege…That he has refused to lend his great mind and legal ability to great capitalist interests for a mere monetary legal retainer. For all these faults, if faults they are as alleged by some, he is condemned.” [9]

Valdez Daily Prospector, 1916-04-29

As the first Jewish person ever nominated to the Supreme Court, Brandeis had to contend with “a deep vein of anti-Semitism.”[10] Unlike most Supreme Court nominations of the early 20th-century, which were usually approved within one to two weeks, it was over four months from Brandeis’ nomination to his confirmation in June. Among all nominees to the Supreme Court in history, the 117 days that passed between Louis Brandeis nomination and eventual confirmation is unmatched[11]. Ultimately Brandeis would be confirmed by a vote of 47-22, and would become one of the most famous justices the Supreme Court had seen[12].

Hugo Black was appointed against the background of President Roosevelt’s New Deal program in 1937, after Roosevelt’s plan to increase the size of the Supreme Court had failed[13]. Black, a senator from Alabama who had voted for all of Roosevelt’s New Deal programs so far, was nominated to fill the vacancy of Willis Van Devanter. His status as a standing senator – at the time considered a free pass to the Supreme Court if nominated – did not make his confirmation as easy as expected[14].

Black’s personal racial animus and bigotry became focal points in the battle over his confirmation, and his personal views would be carried by major newspapers across the country. Nominated by Roosevelt on the 12th of August, opposition to Black’s appointment was initially not too serious, but several days later rumors began circulating that Black had been involved with the Ku Klux Klan (KKK) and might even still be a member. Black stayed silent in the face of these rumors, and without anything substantial to back them up, Black was confirmed by the Senate on the 17th of August by a margin of 63 to 16[15].

Evening Star, 1937-09-14

Less than a month later his history with the KKK once again took center story though, when a newspaper in Pittsburgh published evidence of Black’s participation in meetings, and even that he had been awarded a “grand passport,” that provided a type of lifetime membership. While rumors of his involvement provoked calls for further investigation, the emerging evidence led to widespread condemnation and outrage. Newspapers and political cartoonists had a field day as the newly confirmed justice of the highest court was confirmed to have been involved with the KKK, leading to intense scrutiny. There was much speculation regarding Roosevelt’s prior knowledge of Black’s background – embarrassing Roosevelt in no small measure[16].

Evening Star, 1937-09-29
Nome Daily Nugget, 1937-09-17
Nome Daily Nugget, 1937-09-29

Black was on vacation in London when the news hit the stands and he was hounded by the press during his stay. Upon his return to the United States, the newly appointed justice of the Supreme Court confronted the allegations in a public radio address, admitting that he had been a member of the KKK 15 years ago. Black said he had dropped any association with the Klan and resigned his membership before becoming a senator, and he further argued that his voting record as a senator refuted any charges of racial bias[17].

Evening Star, 1937-09-22
Nome Daily Nugget, 1937-09-30
Nome Daily Nugget, 1937-10-02

Black’s speech failed to satisfy most of the nation, in part because he did not offer any remorse or apologize for his membership in the KKK. However, motions to unseat Black were unsuccessful as membership in the Klan was itself not illegal and was prior to his appointment[18]. Concerns in 1937 about looming conflict in Europe interrupted the controversy though and diverted the nation’s attention. In spite of his past, Black would go on to surprise many of his detractors over the course of his career, which lasted until 1971. His support for civil rights and protection of civil liberties helped Roosevelt to feel vindicated in his decision, despite the tumult of his confirmation[19].

Written by Christopher Russell


References:

[1] Nominations: A Historical Overview. United States Senate. https://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm

[2] The People’s Lawyer. New York World, carried by the Iditarod Pioneer, 04-15-1916. Page two. https://chroniclingamerica.loc.gov/lccn/sn95060032/1916-04-15/ed-1/seq-2/

[3] Senator James sure Brandeis will win. Valdez Daily Prospector, 02-26-1916. Page one. https://chroniclingamerica.loc.gov/lccn/sn98060264/1916-02-26/ed-1/seq-2/

[4] The Brandeis Brief—in its entirety. University of Louisville, Louis D. Brandeis School of Law. https://louisville.edu/law/library/special-collections/the-louis-d.-brandeis-collection/the-brandeis-brief-in-its-entirety

[5] Supreme Court Nominations, 1789 to 2018: Actions by the Senate, the Judiciary Committee, and the President. Congressional Research Service, 10-09-2020. Page six. https://fas.org/sgp/crs/misc/RL33225.pdf

[6] Wills, Matthew. The Confirmation of Louis D. Brandeis. JSTOR Daily, 06-01-2016. https://daily.jstor.org/confirmation-louis-brandeis/

[7] Supreme Court Nominations, 1789 to 2018: Actions by the Senate, the Judiciary Committee, and the President.

[8] Big Interests after Brandeis. Valdez Daily Prospector, 03-04-1916. Page three. https://chroniclingamerica.loc.gov/lccn/sn98060264/1916-03-04/ed-1/seq-3/

[9] Why and by Whom is Louis D. Brandeis Opposed?. Idaho County Free Press, 03-16-1916. Page six. https://chroniclingamerica.loc.gov/lccn/sn86091100/1916-03-16/ed-1/seq-6/

[10] Nominations: A Historical Overview. United States Senate.

[11] Supreme Court Nominations, 1789 to 2018: Actions by the Senate, the Judiciary Committee, and the President. Congressional Research Service, 10-09-2020.

[12] Nominations: A Historical Overview. United States Senate.

[13] Leuchtenburg, William E. A Klansman Joins the Court: The Appointment of Hugo L. Black. The University of Chicago Law Review, Volume 41 Number 1, Fall 1973. Page one. https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=3788&context=uclrev

[14] Ibid. Page five.

[15] Ibid. Pages nine to ten.

[16] Ibid. Pages twelve to sixteen.

[17] Justice Black Belong to Ku Klux Klan 15 Years Ago: Speech Was Surprise. The Nome Daily Nugget, 10-02-1937. Page one. https://chroniclingamerica.loc.gov/lccn/sn87062014/1937-10-02/ed-1/seq-1/

[18] Leuchtenburg, William E. A Klansman Joins the Court: The Appointment of Hugo L. Black. The University of Chicago Law Review, Volume 41 Number 1, Fall 1973. Page sixteen.

[19] Ibid. Page twenty-six.

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